MVP-201X-xxxxx-XXX {insert name of mitigation bank}
AGREEMENT TO ESTABLISH THE MITIGATION BANK
IN COUNTY, WISCONSIN
This Mitigation Banking Instrument (MBI) is made and entered into on the day of , 20 , by , hereinafter the “Sponsor,” and the U. S. Army Corps of Engineers (Corps).
WHEREAS, the purpose of this agreement is to establish a mitigation bank (the Bank) providing compensatory mitigation in appropriate circumstances for unavoidable wetland impacts separately authorized by Department of the Army permits issued pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899(DA permits); and
WHEREAS, the Sponsor is {choose one: the ownerin fee simple ofORholds an easement for development of a mitigation bank over}a parcel of land (the Bank Site)containing approximately XX acres located in XXXX County,Wisconsin, described in the Compensation Site Plan(the Plan) dated XX, XXXX, attached as Appendix A, and as shown on the attached survey in Appendix B.
WHEREAS, the Corps, after consultation with the agencies comprising the Interagency Review Team (IRT), agrees that the Bank Site is a suitable mitigation bank site and that implementation of the Plan will result in creditable compensatory mitigation;
THEREFORE, it is mutually agreed among the parties to this MBI that the following provisions are adopted and will be implemented upon signature of this MBI.
General Provisions
a.The goal of the Bank is to (restore, enhance, create,preserve) the functions of {list the type(s) of wetland} wetland systems. In circumstances deemed appropriate by the Corps, credits from the Bank may be used as compensation for unavoidable wetland impacts authorized by DApermits.
b.Use of credits from the Bank to offset wetland impacts authorized by DA permits must be in compliance with the Clean Water Act and implementing regulations, including but not limited to the 404(b)(1) Guidelines, the National Environmental Policy Act, and all other applicable Federal and State legislation, rules and regulations.
c.The IRT shall be chaired by a representative of the U.S. Army Corps of Engineers, St. Paul District. Other members of the IRT are {specifically identify the members of the IRT for the bank review. This should be done in consultation with the Corps representative who chairs the IRT. IRT members for bank reviews commonly include the U.S. Environmental Protection Agency, U.S. Fish & Wildlife Service, Wisconsin Department of Natural Resources, and the Natural Resources Conservation Service}. The IRT shall review monitoring and account reports described below. In addition, the IRT will review proposals for corrective measures proposed by the Sponsor, or any of the agencies represented on the IRT.
Compensation Site Plan
a.The Bank Site is a{provide general description of baseline conditions}. A more detailed description of the baseline conditions on the site is contained in the Plan.
b. The Sponsor shall perform the work described in the Plan, including{provide a brief description of the wetland/acreage of work to be undertaken, e.g. planting, hydrologic and soil modifications, etc.} The purpose of this work, and the objective of the Bank, is to {restore, enhance, create, preserve}the functions ofXXacres of {Identify the Eggers and Reed wetland community type} wetlands. {add additional language if multiple types of wetlands, or if upland buffer. Specify which if any credits will be preservation credits. Summarize types and credits in table.}.
c.The Corps, at its sole discretion after considering comments from the IRT and the Sponsor, will determine the number of credits generated by this Bank. The projected amount of wetland credits from this Bank by wetland and compensation type are summarized in the following table. {Use the table below to summarize the projected credits generated by this bank.}
Type of Compensation / Number of Acres / Type of Wetland Credit / Final Projected Credits(: ratio) / (Type)
(: ratio) / (Type)
(: ratio) / (Type)
(: ratio) / (Type)
(: ratio) / (Type)
(: ratio) / (Type)
Upland Buffer, native, non-invasive (4:1 ratio, but may not contribute to more than 15% of total bank credits) / {All upland buffer shall be credited as a wetland type based on the percentage of each wetland type projected to be restored, enhanced, created, or preserved. The percentages will be based on the acreage associated with each wetland type and not the amount of wetland credit generated}
Total
d.The Sponsor shall submit annual monitoring reportsto the Corps by December 31 of each year for five years following the first growing season of the Bank or as otherwise specified in the Plan. {The number of years can be adjusted if the Plan calls for more than five years of monitoring} The monitoring reports shall include data and photographs on vegetation and hydrology, as specified in the Plan. The Corps, in consultation with the IRT, may shorten or extend the monitoring period based on whether the Bank Site is in compliance with the success criteria specifiedin the Plan.
e.The Sponsor is responsible for assuring the success of the {restoration, creation, enhancement, preservation}activities specified in the Plan that will occur at the Bank Site, and for the overall operation and management of the Bank.
f. The Corps shall review the monitoring reports, and may, at any time, after consultation with the Sponsor and the IRT, direct the Sponsor to take corrective measures at the Bank Site. The purpose of the corrective measures shall be to achieve the success criteria specified in the Plan.
g.The Sponsor shall implement any corrective measures by the date specified by the Corps.
h.In the event the Sponsor determines that corrective measures may be necessary to achieve the required success criteria, it shall provide notice of such proposed corrective measures to all members of the IRT. No corrective measures shall be taken without the concurrence of the Corps, in consultation with the IRT.
i.Representatives of the Corps and otherIRT agenciesshall be allowed reasonable access to the Bank Site for the purposes of inspection of the Bank Site and monitoring compliance with the Plan.
Use of Mitigation Credits
The Bank Service Area (BSA) is the designated area wherein a bank can reasonably be expected to provide appropriate compensation for impacts to wetland or other aquatic resources. The BSA for this Bank is the(BSA name(number))Bank Service Area in Wisconsin.
For projects in the BSA of this Bank that requireDepartment of the Army (DA) authorization pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899credits from this Bank may be used to satisfy compensatory mitigation requirements, subject to Corps approval. Use of the Bank to compensate for impacts beyond the BSA may be considered by the Corps on a case-by-case basis when the Corps determines there are no other reasonable compensation options available to the permittee.
The Corps will determine whether use of the credits from the Bank is appropriate for offsetting wetland impacts authorized by a DA permit, and will also determine the number and type(s) of credits required to compensate for those impacts. The Corps will consider comments submitted by the IRT and the public as part of the permit review process before approving of the use of credits from the Bank.
Permit applicants may propose to use a particular mitigation bank to provide the mitigation to be required by a DA permit. Before the Corps will consider such a request, the Sponsor must provide the permit applicant with a statement of credit availability before the Corps will decide whether to approve of the use of the Bank. The State’s Purchase Agreement for Wetland Banking Credits form is acceptable for that purpose.
In accordance with the terms of this MBI, the Sponsor agrees that upon Corps approval of a proposal by an applicant to secure mitigation bank credits through a contract with this Bank, a fully executed contract between the Sponsor and the applicant shall act to transfer to this Bank all responsibility for the compensatory mitigation requirement satisfied by the purchase of credits from this Bank.
Release of Credits
a.Bank credits shall not be released for saleto meet compensatory requirements of Department of the Army permits until the release is approved in writing by the Corps. The Corps will not approve of the release of bank credits until after all of the following have occurred:
i. Execution of this MBI by the Sponsor, the Corps, and other agencies eligible for membership in the IRT who choose to execute this agreement;
ii. Approval of the as-builtplan;
iii. Delivery of any financial assurance required by this MBI;
iv. Recording of the conservation easement required by this MBI;
v. Provision of a copy of the title insurance policy accepted by the State of Wisconsin.
If some of these items have been completed, indicate here. For example,
Items iv. and v. have been completed
b.The Sponsor may petition the Corps for the release of bank credits by submitting arequest to deposit credits in accordance with the following schedule excerpted from the Plan:
- % upon IRT approval of construction and vegetative planting. Total% of expected credits.
- up to % additional credits after 1st year performance standards are met. Total creditsapproved for deposit shall not exceed % of credits based on acres meeting both hydrology and vegetation performance standards for this stage;
- up to % additional credits after 2nd year performance standards are met. Total creditsapproved for deposit shall not exceed % of credits based on wetland area meeting the hydrology performance standards for two or more years and applicable vegetation performance standards;
- up to % additional credits after 3rd year performance standards are met. Total creditsapproved for deposit shall not exceed % of credits expected based on wetland area meeting the hydrology performance standards for three or more years and applicable vegetation performance standards;
- up to % additional credits after 4th year performance standards are met. Total creditsapproved for deposit shall not exceed % of credits expected based on wetland area meeting the hydrology performance standards for four or more years and applicable vegetation performance standards;
- up to % additional credits after 5th year performance standards are met. Total creditsapproved for deposit shall be based on areas delineated as wetland that meet final performance standards agreed upon by IRT.
{This schedule may need to be adjusted if the success criteria are for more than five years}
c.The above schedule applies only to the extent the Sponsor documents that the Bank Site meets the applicable success criteria. The IRT will have 15 days from receipt of a request to deposit credits to provide comments to the Corps on a request if a site visit is not deemed necessary by the Corps. When a site visit is deemed necessary, the Corps will schedule the site visit to occur within 30 days of receipt of a request to deposit credits and the IRT will have 15 days from the date of the site visit to provide comments.
d.After full consideration of any comments received, the Corps will determine whether the relevant success criteria have been met. The number of credits approved by the Corps for release, if any, is dependent upon whether the applicable success criteria are met and whether the Sponsor has satisfactorily completed required monitoringand other actions. If the Corps determines that the Bank is not meeting success criteria, the Corps may reduce the number of credits available for sale or suspend credit sales entirely.
e.If, after meeting all success criteria as specified in the Plan, the Sponsor finds that the Bank has developed aquatic resource functions substantially in excess of those upon which the original credit totals and release schedule were based, the Sponsor may submit a written request to the Corps that the MBI be amended to reflect the changes in the number or type of credits. This request must include detailed documentation of the aquatic resources functions provided by the Bank Site, an explanation of how those aquatic resource functions substantially exceed the functions upon which the original credit totals were based, an explanation of the basis for calculating the additional credits, and any other information deemed necessary by the Corps.
Accounting, Ledger Reports and Sale of Credits
The Corps has the responsibility for tracking federally-approved mitigation bank credits in the State of Wisconsin. The Sponsor will comply with all rules imposed by the Corps for tracking the availability and sale of credits. The Sponsor shall establish and maintain a ledger to account for all credit transactions. Each time an approved credit transaction occurs, the sponsor must provide written notification to the St. Paul District Office at the following address: U.S. Army Corps of Engineers, St. Paul District Regulatory Branch, 180 Fifth Street East, Suite 700. St. Paul, Minnesota 55101. The notification can take the form of an updated copy of the ledger that shows the new credit transaction, or can be a copy of the executed contract to purchase credits. The notification must include information on the purchaser of credits (permittee), impact location (county, section, township, and range, and latitude and longitude in decimal degrees), acres and type of wetland impact, amount and type of credit(s) sold, and associated state and federal permit numbers. In addition to documenting individual sales of credits, the Sponsor shall provide annual ledger reports to the IRT for this Bank. Annual ledger reports must include the beginning and ending balances of available credits by credit type, all credit deposits and withdrawals, and other changes in credit availability, such as the release of additional credits or the suspension of credit sales. The Corps will maintain a public, web-based copy of the ledger for the Bank on the Regulatory In-Lieu Fee BankInformation & Tracking System (RIBITS). Once a credit is debited, its value cannot change and the credit cannot be resold.
Closure Procedures
Upon the sale of the last credit in the Bank, such that no credits are available for sale, the Sponsor shall provide a written certification to the Corps stating that all credits are sold and the bank is closed to future sales. The Certification shall state the total number of credits of each wetland type that were sold (e.g. sedge meadow, shallow marsh, upland buffer).
Bank Site Preservation
The Sponsor, and the fee owner of the Bank Site if different from the Sponsor, shall grant a conservation easement to the State of Wisconsin, in a form acceptable to the WDNR and the Corps, sufficient to protect the Bank Site in perpetuity. The conservation easement must provide protection equivalent to the model WDNR conservation easement (attached as Appendix D). Sponsors are encouraged to utilize the model WDNR conservation easement to expedite the review process. Deviations from the model should be highlighted in the version submitted for agency review. The conservation easement shall be perpetual, preserve all natural areas, and prohibit all use of the property inconsistent with its use as mitigation site, including any activity that would materially alter the biological integrity or functional value of wetlands within the Bank Site, consistent with the Plan. The Sponsor shall deliver a copy of the title insurance covering the mitigation property that is acceptable to the Corps and the State of Wisconsin (easement holder). The property shall be free and clear of any encumbrances that would conflict with its use as mitigation, including, but not limited to, any liens that have priority over the recorded preservation mechanism.
Financial Assurances
Prior to the release of any state or Federal credits for sale, the Sponsor shall provide the following financial assurance(s):
If the Sponsor is providing a construction financial assurance then use the following paragraph.
a. Construction. The Sponsor shall provide a performance bond, irrevocable escrow agreement, or other assurance acceptable to the Wisconsin Department of Natural Resources (WDNR) in the amount of ${}. The construction assurance shall be available to the WDNR to undertake the construction, including seeding and planting, of the mitigation project as described in the Plan. Once the Sponsor has provided documentation to the WDNR and the Corps verifying that all work has been satisfactorily completed, the WDNR, after consulting with the Corps, may authorize the release of any remaining funds to the Sponsor.
If the Sponsor elects not to provide a construction financial assurance then use the following paragraph.
a. Construction. The Sponsor has decided not to request a release of credits prior to the completion of construction. Therefore, a construction financial assurance is not required for this mitigation bank.
b. Maintenance. The Sponsor shall provide a performance bond, irrevocable escrow agreement, or other assurance acceptable to the Wisconsin Department of Natural Resources (WDNR) in the amount of ${}. The maintenance assurance shall be available to the WDNR to undertake the monitoring and maintenance of the mitigation bank site as required in the Plan. Once the Sponsor has provided documentation to the WDNR and the Corps verifying that the final performance standards have been satisfactorily met, that no additional monitoring is required and that the final release of credits has been authorized by the Corps, the WDNR, after consulting with the Corps, may authorize the release of any remaining funds to the Sponsor. At the request of the Sponsor, the WDNR, after consulting with the Corps, may also authorize a partial release of the maintenance funds during the required monitoring phase of the project for the portion of the work that has been satisfactorily completed.